June 26, 2007

Characterizing the Roberts Court

In the aftermath of the Supreme Court's handing down of five major decisions yesterday, many are trying to characterize the nature of those decisions and thereby to make sense of the landscape of the new 'Roberts Court'. Even a cursory examination of the news coverage is enough to confuse the ordinary reader, as interpretations vary widely in tone from despairing to rejoicing. Here's an example: comparing the first lines of two news stories describing the Supreme Court decision in FEC v. Wisconsin Right to Life.

The AP reported:
"Free speech rights take precedence over government restrictions on political advertising, the Supreme Court ruled Monday in a decision that opens the door for greater influence by interest groups in the closing days of an election."
The Washington Post wrote:
"The Supreme Court yesterday substantially weakened restrictions on the kinds of television ads that corporations and unions can finance in the days before an election, providing special interest groups with the opportunity for a far more expansive role in the 2008 elections."
These two opening salvos represent opposing points of view along the spectrum of opinion regarding the interpretation of this most recent Supreme Court decision. One emphasizes a victory for free speech; the other emphasizes a victory for big business and special interests.
But this kind of divergence is only the tip of the iceberg; a certain amount of uproar and outrage dominates the response to Monday’s Supreme Court decisions.

Andrew Cohen laments
the recent decisions as evidence of the Roberts Court’s being firmly "entrenched on the ground of the legal right". The St. Petersburg Times indicts the Roberts Court for ushering in a new "plurality for cruelty" in the Supreme Court.

But Roberts' opinion itself in FEC v. WRTL actually emphasizes the protection of free speech – and effectively rules that single issues should be allowed to be discussed in an open marketplace of ideas, regardless of time proximity to any election. This is in opposition to a popular interpretation of that decision, which decries its potentially far-reaching effects – allegedly, a huge increase in corporate- and union-funded electioneering, within some cursory limits (i.e. no explicit exhortations to 'vote for...' or 'vote against...' some candidate).

But in the face of some fairly stringent outcry regarding the Supreme Court's recent batch of decisions, it is worth remembering that the Roberts Court is in fact shaping up to be fairly deferent to the rule of law and respectful of the role of the legislature. We might more accurately and less inflammatorily call this approach "Conservative but incremental", as characterized by Tom Curry in yet another news source.

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